United States v. Antwine

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 29, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-7088
v. (D.C. No. 6:12-CR-00032-RAW-1)
(E.D. Okla.)
DARRICK DION ANTWINE,
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
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Defendant Darrick Dion Antwine appeals from the district court’s dismissal of his
motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) for lack of jurisdiction.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal. Because
Defendant’s sentence was entered in accordance with a Fed. R. Crim. P. 11(c)(1)(C) plea
agreement to a specific term of imprisonment not calculated under the Sentencing
Guidelines, it was not “based on” the guidelines and § 3582(c)(2) cannot be applied to
lower Mr. Antwine’s sentence.
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
We review de novo the district court’s dismissal for lack of jurisdiction under §
3582(c). See United States v. Jordan, 853 F.3d 1334, 1338 (10th Cir. 2017). “Federal
courts generally lack the authority to modify a term of imprisonment once it has been
imposed.” Id. (internal quotation marks omitted). But § 3582(c)(2) provides an
exception to this general rule, permitting a district court to reduce a defendant’s sentence
when two conditions are met: first, that the sentence was “based on a sentencing range
that has subsequently been lowered by the Sentencing Commission”; and second, that
the reduction would be “consistent with applicable policy statements issued by the
Sentencing Commission.” Id. at 1338. Defendant’s motion under § 3582 fails to satisfy
the first condition.
Defendant was sentenced under a Fed. R. Crim. P. 11(c)(1)(C) agreement. To
determine whether the sentence was based on a guideline sentencing range, we follow
Justice Sotomayor’s concurrence in Freeman v. United States, 564 U.S. 522 (2011); see
United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013) (“Justice Sotomayor’s
concurrence is the narrowest grounds of decision [in Freeman] and represents the Court’s
holding.”). Under that concurrence, “a term of imprisonment imposed under a Rule
11(c)(1)(C) plea agreement is ‘based on’ the Guidelines if the agreement either ‘calls for
the defendant to be sentenced within a particular Guidelines sentencing range,’ or
‘provides for a specific term of imprisonment and makes clear that the basis for the
specified term is a Guidelines sentence range applicable to the offense to which the
defendant pleaded guilty.’” Jordan, 853 F.3d at 1339 (quoting Freeman, 564 U.S. at
538–39 (Sotomayor, J., concurring in judgment)) (brackets and ellipses omitted).
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Defendant’s plea agreement set his sentence at 240 months’ imprisonment. It does
not purport to rely on any guideline calculation. Indeed, it preceded the calculation of his
guidelines sentencing range by the probation office, which determined that his range was
292–365 months, well above the agreed sentence. The agreement’s only references to the
sentencing guidelines are the government’s disclaimer that it “will not seek any departure
from the applicable sentencing guidelines,” R. at 27, and the government’s agreement to
recommend a three-point reduction in the offense level for Defendant’s acceptance of
responsibility. (Both government promises were mooted by the district court’s
acceptance of the plea agreement.) The agreement neither “call[s] for the defendant to be
sentenced within a particular Guidelines sentencing range” nor does it “make[] clear that
the basis for the specified term is a Guidelines sentencing range applicable to the offense
to which the defendant pleaded guilty.” Freeman, 564 U.S. at 538–39; see United States
v. Price, 627 F. App’x. 738, 741 (10th Cir. 2015) (unpublished) (“Because [the
defendant’s] agreement proposes a specific sentence of 240 months, it does not call for
the district court to sentence Defendant within a particular Guidelines sentencing range”
and is thus not “based on” the sentencing guidelines).
Because Mr. Antwine’s sentence was not “based on” the sentencing guidelines for
§ 3582 purposes, the district court’s dismissal for lack of jurisdiction was the proper
course. See United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996).
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We AFFIRM the dismissal order of the district court.
Entered for the Court
Harris L Hartz
Circuit Judge
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